| Citation(s) |
|---|
| 1967 SLG 24 1967 SLD 24 1967 PLD 28 |
Supreme Court of Pakistan
Civil Appeal No. 47-D of 1965, decision dated: 26th October 1966. (On appeal from the judgment and order of the High Court of East Pakistan, Dacca dated the 18th December 1963, in Civil Revision No. 1130 of 1961).
A. R. CORNELIUS, C.J., HAMOODUR RAHMAN AND MUHAMMAD YAQUB ALI, JJ
Mazhar Hasnain, Advocate Supreme Court, instructed by M. R. KhanAbbas & Co., Attorneys for Appellant. Shafiqyr Rahman, Advocate Supreme Court, instructed by Zinnur Ahmad Attorney on behalf of B. C. Panday Attorney on-Record No. 1.
Civil Appeal No. 47-D of 1965, decision dated: 26th October 1966. (On appeal from the judgment and order of the High Court of East Pakistan, Dacca dated the 18th December 1963, in Civil Revision No. 1130 of 1961).
A. R. CORNELIUS, C.J., HAMOODUR RAHMAN AND MUHAMMAD YAQUB ALI, JJ
Mazhar Hasnain, Advocate Supreme Court, instructed by M. R. KhanAbbas & Co., Attorneys for Appellant. Shafiqyr Rahman, Advocate Supreme Court, instructed by Zinnur Ahmad Attorney on behalf of B. C. Panday Attorney on-Record No. 1.
CHANDRA KUMAR MALADAS
VS
(1) ABDUL MOTALEB, (2) AMINULLAH, (3) SHORAMONI MALADAS, (4) RADHA KRISHNA MALADAS AND (5) KALIKTARA MALADAS Nos. 25 : Ex parte
Law:
Section:
(a) Constitution of Pakistan (1962)--Art. 58(3)-Leave to appeal-Granted by Supreme Court to consider (1) whether High Court was justified in allowing pre-emption of an auction sale which had been set aside (2) whether doctrine of lis pendens applied to a pre-emption case. Leave to appeal was granted by the Supreme Court to consider whether after setting aside of the auction sale the High Court was justified in allowing pre-emption of the said sale and whether the doctrine of lis pendens applied to a pre-emption case. (b) Bengal Tenancy Act (VIII of 1885)-- S. 26-F-Pre-emption application under S. 26-F-Sought to be defeated by compromise between -debtors and auction purchaser-Doctrine of lis pendens applicable. The auction sale was set aside by compromise with the -debtors after they had received notice of the case filed by the co-sharer to pre-empt the sale. By then the date for making an application under the Bengal Public Demands Recovery Act, 1913, had expired and none of the grounds specified in sections 23 and 24 of the Act for setting aside an auction sale was made out. The order of the Court setting aside the sale on compromise was thus in disguise a re conveyance of the interest acquired by the auction-purchaser at the auction sale in favour of the debtors: Held, that the High Court was right in applying the doctrine of lis pendens to the so-called cancellation of the auction sale. (c) Bengal Tenancy Act (VIII of 1885)--- S. 26-F Pre-emptor applicant must have a subsisting interest in holding not only at time of filing application but must continue to hold "selfsame interest" to date of decision-Fresh interest acquired at later stage cannot be tacked on to initial interest lost during pendency of application. A pre-emptor must not only have a subsisting interest in the holding when he files the application under section 26-F of the Bengal Tenancy Act, but must continue to hold the selfsame interest to the date when the case is finally disposed of. No other construction can be placed on section 26-F. A co-sharer means a person whose interest subsists throughout the course of the application to pre-empt and not a person who held such an interest in the…
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